June 29, 1997

Earl Sr. and Chance Erick

Two-year-old Chance Erick holds a lynx that he helped his dad, Earl Erick Sr., trap near Venetie. Venetie's effort to tax a contractor touched off a Supreme Court battle over the powers of tribal governments in Alaska. (Anchorage Daily News photo by Bob Hallinen)

Indian Country: 2 Destinies, 1 Land

By Tom Kizzia
Daily News reporter

One morning last summer, at the height of the king salmon run, Granville Brinkman awoke to find himself in Indian country.

The avid angler was staying in a big private camp on the Kanektok River in Southwest Alaska, where dozens of similar camps crowd gravel bars when the salmon run thick. Anglers from around the world pay guides thousands of dollars a week to cast into the clear, cold water.

But for the 540 Yup'ik Eskimo residents of Quinhagak, whose ancestors have lived near the river mouth for centuries, the tourist boom has been a bust. It has meant no money for the tribe -- just competition for fish and drinking water polluted by fishermen's feces.

Now the village is doing something about it -- and making history in the process. Quinhagak's leaders are coolly asserting jurisdiction as a sovereign Native American tribe over outsiders camped on the riverbanks they call Indian country.

Brinkman, a Seattle businessman, was alone in camp last June when the entire Eskimo tribal council showed up in boats with a summons to tribal court.

''I just went up there to fish,'' Brinkman said. ''All of a sudden there was a problem.''

Last November, all of Alaska suddenly found itself in Brinkman's boots. A federal appeals court upended conventional wisdom, ruling that village tribes in Alaska may have jurisdiction over their traditional lands.

Now the U.S. Supreme Court is considering whether to uphold that decision. But as sportfishermen near Quinhagak have discovered, this is not just a dispute among lawyers. In the eyes of many rural Alaska Natives, Indian country already exists on the Kanektok River and in pockets across the state.

Villages are setting up tribal courts, imposing tribal taxes, hiring tribal police officers, and enacting tribal laws that affect villagers and non-Native visitors aike.

Tribal councils are ignoring state gaming laws and running their own bingo and pull-tab operations. One tribal government even envisions a casino in downtown Anchorage.

Citing the special powers of Indian tribes, local councils skirt the Constitution and routinely search incoming visitors for alcohol and drugs. Troublemakers, both Native and white, have been kicked out of villages by tribal edict.

Tribal governments in Alaska say they are doing all this to save a culture on the brink of destruction. And they are doing it even though state and federal policy-makers have said they have no legal right.

The state's lawyers argue that Alaska's Natives don't have the powers of tribes in the Lower 48. Alaska has a bigger percentage of Native Americans than any other state. But their legal status was supposedly different -- the very word ''tribe'' evoked a history of treaties and Indian wars that had little to do with Alaska's isolated Eskimo, Indian and Aleut villages.

Above all else, Indian country opponents say, the Alaska Native Claims Settlement Act, which created the state's unique system of Native-owned corporations and awarded them $962 million and 44 million acres of land, did away with any possibility of Indian country here.

But last November, in a landmark ruling that stunned many Alaskans, a federal appeals court said yes, Indian country does exist in Alaska.

Alaska is now watching for the outcome of the state's appeal to the U.S. Supreme Court.

In Juneau, legislative leaders said the stakes over tribal sovereignty make every other issue, even subsistence hunting and fishing rights, pale by comparison. Indian country, they say, would create a chaotic patchwork of jurisdictions and deepen racial divisions.

The state's lawyers have been joined by 20 other states worried about the spread of a new tribes-without-reservations concept to the Lower 48.

Alaska Natives, speaking with increasing unity, respond that tribal government has never disappeared from the Bush. They say the decade-long tribal revival in rural Alaska is too far advanced to be stopped by court rulings or backstop acts of Congress.

''It drives me crazy when I hear people say the 9th Circuit has 'granted the right' for tribes to exist in Alaska,'' said Will Mayo, president of the Fairbanks-based Tanana Chiefs Conference. ''This is not something that just suddenly appeared.''

Both sides are raising practical arguments about how Indian country could hurt the state's broader interests or what it could do for rural communities. Underlying these concerns is a profound philosophical debate over race and history.

On one side is the national ideal of minority-group assimilation and the Alaska constitution's insistence on equality before the law. On the other is the historical right of America's first inhabitants to govern themselves and maintain a measure of control over their collective fate.

Suddenly, on the eve of the 21st century, the people of Alaska are faced with resolving one of the oldest unsettled arguments in American history.

It begins with a tax

Five months after Granville Brinkman was summoned to tribal court in Quinhagak, the 9th U.S. Circuit Court of Appeals handed down the decision that touched off the wider debate over Indian country in Alaska.

The 9th Circuit case involved a tax imposed by the joint tribal government of Venetie and Arctic Village, the two northernmost Indian communities in the United States. The federal appeals judges concluded that the land claims act and transfer of land to village Native corporations had not, by itself, removed the land from the authority of Alaska's village-based tribes.

The land around Venetie -- and any other land in Alaska that could meet the 9th Circuit's new test -- was Indian country, where tribes had jurisdiction and the state did not.

The ruling appeared to sanction village tribal activity that had spread rapidly for a decade, often under the carefully averted gaze of state officials who may oppose tribal government in principle but find it the only practical way to administer modern life in much of rural Alaska.

But to many Alaskans, the ruling came as ''a bolt out of the blue,'' as the state's lawyers said when they asked the Supreme Court to hear an appeal.

Suddenly, under the Venetie decision, the most basic social and political relations in Alaska have been called into question.

The state's lawyers predict chaos if all 226 recognized tribal councils in Alaska invent their own rules for taxation and regulation independent of the state. They quoted one of the 9th Circuit's judges, who glumly anticipated ''a blizzard of litigation'' as villages like Quinhagak test whether they, too, have tribal powers.

''In practically every area of government, Alaskans -- Native and non-Native alike -- must now ask themselves the basic question: who is in charge?'' the state told the Supreme Court.

Native rights lawyers have tried to spin the issue the other way, saying the state's alarms are overblown. They say the 9th Circuit's test for Indian country is a good fit only for remote villages and is unlikely to affect most Alaskans.

Instead of demonizing tribes, they say, the state should be working with local councils to address the worries that gave rise to the Indian country movement: the future of subsistence, the absence of effective rural law enforcement, the unraveling of Native culture in a spiral of alcohol abuse, suicide, and powerlessness.

In remote villages where few non-Natives live, objections to tribal self-government can indeed seem harsh and overwrought. Even so, recognition of Indian country would bring profound change to Alaska.

An examination of state-tribal conflicts in the Lower 48 and dozens of interviews with Alaska tribal leaders, state officials and experts in federal Indian law suggest that Indian country would permanently alter ways of doing business here: shifting power away from Juneau, authorizing new kinds of taxes and regulations, and creating parallel legal systems that would be complicated to synchronize.

As Alaskans wait to hear what the Supreme Court will say, an ever-widening rift is opening on the Last Frontier.

The Legislature quickly passed a special $1 million appropriation to fight what legislators said was a challenge to the state's sovereignty. Republicans in the legislative majority cited such concerns as inconsistent fish and game rules and tribal taxes that they said might discourage rural development.

But many also expressed an underlying sense that Indian country is somehow un-American.

Sen. Robin Taylor, R-Wrangell, chairman of the Senate Judiciary Committee, said extra-constitutional baggage searches for alcohol, no matter how effective, were marks of a tyrannical dictatorship, potentially unfair to tribal members as well as outsiders. ''Let's set up Juneau as a dictatorship and I'll bet you it would work real good,'' he said.

Native leaders responded that the concept of Indian self-determination is as old as the U.S. Constitution. In villages like Quinhagak and Venetie, the response has been bitter to the $1 million appropriation by legislators who could otherwise talk of nothing but budget cuts.

On the wall of the tribal office in Quinhagak is a picture of Gov. Tony Knowles, smiling in the midst of black-suited Quinhagak tribal police officers. Knowles, a Democrat, was narrowly elected with overwhelming support from rural Alaska. His opposition to Indian country since last November has stirred especially strong feelings of betrayal, said Frank Fox, 54, Quinhagak's tribal natural resources manager.

''If we'd known what was going to happen,'' said Fox with a rueful smile, ''we'd have taken him hostage.''

'The river is everything'

Many of the forces that brought Indian country to rural Alaska can be seen in a hand-painted plywood sign by the river in Quinhagak, 70 miles south of Bethel on the Bering Sea coast.

Faced by the unregulated growth of sportfishing on the Kanektok River, Yup'ik villagers put up the sign warning: ''To Avoid Stray Bullets From Seal Hunters Do Not Sport Fish Beyond This Point.'' Anglers sometimes crowd upstream of the sign as if it were a Fish and Game marker.

The Kanektok River has sustained the Yup'ik people of Quinhagak for centuries. Today the river provides a small cash economy, salmon for the drying racks in summer, rainbow trout through the ice in winter, boat access to the mountains for caribou and firewood, water for drinking.

''This river is everything for us,'' Fox said.

The river and its low-water gravel bars belong to the state. The surrounding land belongs to the Native corporation and individual Native allotment owners.

Since 1980, sportfishing on the Kanektok has grown from nearly nothing to 5,800 user days in 1996, according to the U.S. Fish and Wildlife Service. The growth has meant trespassing on Native land, pollution, and development of permanent private and commercial camps on state riverbars that are supposed to have a three-day camping limit.

Nothing was being done about it, villagers say.

State troopers say they are too busy to attend to non-emergencies on the river.

Trespass complaints had to be filed in Bethel court. Few complaints were ever filed, and the offending campers were long gone before anything could be done.

The state could afford to send Department of Natural Resources officials to the river only once or twice a summer. Even then, visiting state officials had no authority to cite the long-term gravel-bar camps. Like the corporation, state officials could only file complaints in a distant state court.

Federal jurisdiction begins 20 miles upriver at the Togiak National Wildlife Refuge. But federal rangers who patrol the lower river said they were there only to provide information, which the illegal camps ignored.

In 1987, villagers charged upriver in their skiffs in a futile protest. They were angry their commercial fishery had been shut down but the outsiders could continue to sportfish.

''They just grabbed their rods and reels and ran off into the willows,'' Fox said.

Villagers asked the state Board of Fisheries without success to close the Kanektok to catch-and-release fishing, citing local cultural and religious beliefs. The practice of releasing fish may be high-minded conservation to anglers, but Yup'ik elders said playing with food insults the fish and drives them away from men.

''We've been treated just like the birdwatchers and rafters,'' said Anthony Caole, Quinhagak's tribal administrator. ''Without a government-to-government relationship, we get no special standing.''

Lately injury has been added to insult, as elderly people fell sick with diarrhea during the salmon runs. River water samples taken by tribal police and tested in Anchorage found high levels of human waste, with fecal coliform measurements spiking during the popular silver salmon season and in the spring, when high water reclaimed the gravel bars for the state.

Quinhagak has faced internal turmoil as well. Like the external modern problems on the river, the problems of cultural breakdown helped nudge the village toward tribal government.

A Quinhagak teenager died in 1987 after a drinking party featuring punch spiked with toxic cleaning fluid stolen from a school copier machine. Four years ago, another teenager was killed in a high-speed snowmachine accident after he'd been sniffing gasoline.

The village has voted itself dry under state alcohol law, and state courts took care of the worst alcohol-related crimes. But nobody was around to handle the smaller daily tragedies, the public drunkenness and senseless accidents and domestic violence, that can turn life in some villages into a battle zone.

''Predictions of chaos are one perspective,'' said Tanana Chiefs president Mayo, recalling the state's description of the consequences of sovereignty. ''But from the village perspective, chaos already is occurring. I can't tell you how many potlatches we've had for our dying children.''

Village officials found support for tribes in the work of a blue ribbon panel appointed by Congress in 1990 to investigate the cultural disintegration in many rural Native communities. The Alaska Native Review Commission concluded that tribal jurisdiction over alcohol control, community matters and law enforcement would strengthen village culture by allowing ''Native solutions to Native problems.''

''If you travel in Alaska, you find that the places acting the most like tribes are the places that are the most functional,'' said John Sky Starkey, a lawyer for the Bethel-based Association of Village Council Presidents who has represented Quinhagak in subsistence cases. ''So if you really want a functional rural Alaska, it seems to me that Indian country is the way you get there.''

In Juneau, however, legislators insisted that Native demands for greater local control be channeled through the state's own institutions.

''They'll do a better job there than we do here. I support them on that," Taylor said. ''But run it through a municipal government. The only muster they have to pass is does it pass the constitution of the state of Alaska, which demands equal rights.

''The U.S. Constitution allows and encourages discrimination. The Alaska constitution demands equality,'' said Taylor, who appeared before the Alaska Federation of Natives in February to argue the case against Indian country. ''This will all be thrown out. It could take 50 years. It cannot withstand the test of the Bill of Rights.''

But in an era of state budget cutting, Quinhagak's leaders say their search for government help with village problems has brought empty rhetoric from the state.

Both Quinhagak's state magistrate and its village public safety officer, who reports to the troopers, have resigned. The magistrate isn't being replaced, and replacing the VPSO won't be easy: that program is chronically underfunded, with no money to hire an officer in one of four villages authorized. In Quinhagak, local law enforcement is now in the hands of five tribal police officers.

The Department of Environmental Conservation was unable to respond to years of village complaints about fecal pollution. ''We've lost 50 percent of our general fund budget in the last five years. We cannot deliver that kind of public health service everywhere it's needed,'' said DEC commissioner Michele Brown. The tribe went to the federal Environmental Protection Agency for money to do its own water testing.

The Department of Fish and Game was unable to monitor spawning escapements in the Kanektok, despite biologists' concerns about increased fishing pressure. So the tribe assembled federal grants worth $75,000 to build a salmon-counting tower, which will be staffed by villagers with technical oversight from the state Department of Fish and Game.

''For a long time, the state has wanted to do an escapement count on the Kanektok, but we didn't have enough money,'' said Fish and Game research biologist Doug Molyneaux. ''With this and other cooperative projects on the Kuskokwim, we've more than doubled the number of escapement projects we have.''

And as state revenue sharing to municipalities shrank each year, new sources of money opened to tribal governments through federal self-determination programs.

When the Quinhagak tribal council was formally revived in 1993, the major goal at first was to tap federal grants for village jobs, concedes council president Wassilie Bavilla.

In a typical turn of events, the initial push came from a local resident, Bavilla, who had attended boarding school in Oklahoma and was familiar with tribal governments in the Lower 48.

The tribe hired as its administrator a non-Native married to a villager. Anthony Caole, who had studied the new tribal movement as part of a rural development program at the University of Alaska Fairbanks, started drafting personnel policies and ordinance codes.

From an initial $30,000 administrative grant, the tribe has grown to handle a payroll of more than $1 million a year. The city council has been eclipsed, contracting with the tribe to handle all local services.

The tribe soon turned its attention to illegal sportfishing camps like the one where Granville Brinkman was a guest.

The camp had been set up by Mark Smith, an Anchorage fishing guide. Smith had been told by a tribal police officer that he was camped on Native corporation land.

''I said I beg to differ. They have no right to go in on state property and kick us out,'' Smith said. ''Everything used to be fine out there, but then the village goes from municipal government to tribal rule and things started to get ugly.''

Eventually a state official flew out from Anchorage and said the tribe was right about the gravel bar being above the high-water line, making it Native land. By that time, however, Smith had left the Kanektok. He'd had a second run-in with tribal police -- this time over alcohol and a fistfight with another guide at a hot fishing hole.

So it was left to Brinkman to settle a $900 account with the tribe and move the camp.

"The first encounter was a little tense, but we came to an agreement,'' Brinkman said. "To me, police are police. But with the corporation and the tribe, that is somewhat confusing."

Another tribal law required honeybuckets for human waste in camps along the river. Most fishermen happily agreed to drop their waste at the airport, Caole said. In what could be an interesting test of Indian country, the tribe will cite violators on state-owned gravel bars this summer.

This summer, one of the ''informational'' federal rangers on the lower river will be a deputized tribal police officer. The refuge had tried to hire a villager, Caole said, but ran into a local stigma against anyone from Quinhagak wearing a federal uniform.

Eventually, through signed three-way agreements with the state and federal governments, Quinhagak hopes to be able to enforce state and federal rules along the river, Caole said.

''Nobody's talking about trying to assume exclusive management of resources,'' Caole said. ''We just want a meaningful role.''

Meanwhile, the new tribal court has been busy with internal matters. Judges banished a repeat-offender bootlegger and clamped down on public drinking. Domestic violence cases have practically disappeared because people are mortified showing up before tribal judges, said Curtis Abalama, who resigned in May after serving six years as the village public safety officer.

''It used to be when the weather is warming up, we'd see more drunks,'' said John Smith, a former state magistrate who was appointed the tribe's chief justice. ''I used to see families, their kids crying. I don't see it now.''

A few villages with a more radical interpretation of their sovereignty have had well-publicized clashes with state troopers over the handling of more serious crimes. But Jim Hibpshman, a state trooper who occasionally visits Quinhagak, said this tribal court pays close attention to proper procedure and the tribal police cooperate with troopers.

''I know there are some people in the state who have some heartburn with it, but I think it's a good thing,'' said Hibpshman. ''These are smart people and they know what works and doesn't work. If you were living out here and the river was out of control, what would you do?''

Tribal officials say they have no plan to ban sportfishing on the Kanektok, even if they could. In fact, they say, they are lucky to have some economic base for the future.

For three years, the Qanirtuuq Corp. has operated its own guided fishing camp upriver, having first won approval for the idea in a villagewide vote. Young Native guides have learned to fish with fly rods, and other guides taught a fly-tying class for village children.

''I guess you could call it technology transfer,'' said Qanirtuuq's top guide, Willard Church, who had seen little interaction between sportfishing camps and villagers before that. ''Native people have been adapting for 200 years,'' he said.

The corporation is promoting catch-and-release fishing to protect fish populations -- despite the continued grumbling of village elders.

''This is a challenging thing to keep the camp going, having objections from the elders,'' said Joshua Cleveland, head of the fish camp subsidiary.

But the corporation's effort has lost money so far. And when Quinhagak guides went to sports shows in the Midwest last winter to promote the camp, they said they met hostility spilling over from an Indian treaty battle over spearfishing.

''They would peek over there and see Native people and go away,'' Cleveland said.

In the future, Caole said, the tribal council may get even more involved on the river. That could mean barring alcohol from river camps, since Indian country is automatically dry under federal Indian law. Council members also have discussed zoning in Indian country -- including the many individual Native allotments along the river -- to limit the size of commercial operations, he said.

That may be where Indian country finally rubs someone the wrong way on the Kanektok River.

Alaska West, one of the biggest commercial operators on the river, has a camp on a Native allotment and hosts as many as 18 anglers a week, at $3,500 apiece. Guides there stressed that they keep human waste off the gravel bars and pick up trash when they see it.

John Rupp, a four-year river veteran from California, concedes there has been little communication between the village and their camp, located just one bend up the river. But with a little imagination, he said, he can put himself in the local Natives' shoes.

''It's especially poignant for them because it's their special place and they hate to see it change. But change is happening everywhere,'' Rupp said. ''The river is here for everyone. It doesn't belong to any one person. Any of the villagers can move to California and go fishing there, just like here. This is still the United States.''

Who will govern

Indian country is part of the United States, too, subject to the laws of Congress. It will be up to the Supreme Court to decide whether Alaska's Native villages have the power to act as governments in the way Quinhagak has.

Opponents of Indian country say the main thing inherent in tribal sovereignty is its unfairness. They say it would create ethnic enclaves in Alaska where one racial group gets to make the rules for everybody else.

''It's a giant leap backwards into the 19th century,'' said Anchorage attorney Wayne Anthony Ross, who represented sport hunters in the 1989 lawsuit that overturned as unconstitutional the state's subsistence preference for rural residents. ''They want to see Alaska balkanized into little fiefdoms where these self-proclaimed Native leaders will reign supreme with help from the Great White Father.''

Tribalism pushes Alaska Natives away from full citizenship into being wards of the federal government, some critics say. They contend the economic assimilation model of the land claims act is still Natives' best hope for the future. Sovereignty, they say, creates a natural conflict between powerful Native institutions: the corporation and the tribe.

But in contrast to the early 1980s, when tribal sovereignty first became a political issue, there are few Native voices making those anti-sovereignty arguments today.

The Indian country debate has injected a frank new discussion of race into Alaska politics.

''Congress has created institutionalized racial polarization. You couldn't think of a better way to do it,'' said Larry Long, deputy attorney general of South Dakota, where a checkerboard of Indian and private land has brought decades of litigation. ''Where you have a substantial mix of non-Indians and Natives, I predict those areas are going to be the hotbeds.''

Unconstitutional searches can seem more sympathetic in remote villages than in mixed-race communities, said Sen. Rick Halford, R-Eagle River, one of the Legislature's more outspoken critics of tribal sovereignty.

"Put that same village on the road system and that's where all the conflicts come up," Halford said.

Native leaders and their attorneys respond that it's not a matter of race, but of the historical relationship between Native American tribes and the federal government. The tribes are sovereign not because they get special minority favoritism, but because they never surrendered all their sovereignty to the United States.

''One disadvantage Indians have is you can't understand their position without understanding a long and complex history,'' says University of Colorado law professor Charles Wilkinson, one of the nation's pre-eminent authorities on Western land use and Indian law.

''To get a fair hearing, the Indians have to have the state's leaders or a portion of the public take the time to understand that context. Because when you take it out of its historic context, it does seem race-based and arbitrary. Unfortunately, most people don't have the time to do that.''

Many Natives see racism not in tribal self-government but in the presumption of critics that tribal justice will be mean-spirited, tribal regulation shortsighted and tribal taxation extreme.

''Are tribal governments incapable of wise business practices?'' asked Tanana Chiefs Conference president Mayo. ''Are they, you know, some rabid dogs behind the fence that you've got to keep contained or eliminate?

''They don't even realize what they're doing, do they? They don't realize that the rhetoric, to paint those hook-nosed Indians, so to speak, greedy, stupid -- they don't realize what messages come from that rhetoric.''

In the court's hands

It is June now, and schools of king salmon are again holding in the clear pools of the Kanektok River.

The state's lawyers are trying to convince the Supreme Court that the appeals court misunderstood the history of Native-white relations in Alaska.

If they fail, years of litigation may be necessary to sort out the extent of tribal powers in Alaska. For example, tribes such as Eklutna in Anchorage or the Kenaitze in Kenai, or even tribes in regional hubs like Bethel and Nome, would face a tough challenge qualifying under the 9th Circuit test, Native rights lawyers concede.

Meanwhile, Congress, which has the final word over Indian matters, could intervene and eliminate Indian country in Alaska -- or create a new, narrowly defined version of tribal power here. Already, Alaska's congressional delegation is hinting such a compromise may be possible, despite vows of national Indian organizations to fight efforts to limit inherent tribal rights.

But at least one Lower 48 skeptic warns that the prospect of a congressional fix is a mirage.

''Congress isn't going to answer any of these questions for you. We've been litigating this stuff since the '40s and Congress has not stepped in,'' said Long, the South Dakota deputy attorney general. ''You folks are going into a brave new world.''

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